Gordon College is still under attack for being an intentionally Christian college. For nearly two years, cultural elites in Massachusetts, led by The Boston Globe, have been waging a sustained campaign of accusation and coercion in an effort to force the college to abandon the self-consciously Christian identity expressed in its life and conduct statement.
The attack appeared existential at one time, when the New England Association of Schools and Colleges announced that it would review Gordon’s accreditation. Yet to its lasting credit, the college has remained steadfast in its witness. After a well-organized and vocal objection by the college’s supporters and other friends of conscience, the NEASC quietly backed down.
Still the attacks continue. Most recently, a former Gordon philosophy professor, Lauren Barthold, has filed suit against Gordon alleging unlawful discrimination. Her complaint is signed by lawyers of the American Civil Liberties Union. The college denies her allegations, explaining that she was disciplined by her colleagues on the faculty not on a legally prohibited basis but because she wrote in a newspaper calling for outsiders to impose economic sanctions on the college. She encouraged others to pressure the college to abandon its Christian moral ideals.
The ACLU’s complaint does not contradict that account. And if recent history is any indication, the full facts will vindicate Gordon College once they surface. None of the accusations leveled against Gordon over the last two years has turned out to be true, except the charge that members of the Gordon College community choose to live biblically. Gordon has not discriminated on the basis of sexual orientation. Indeed, Professor Barthold acknowledges the “many . . . LGBTQ-identified students who have found deep friendships, intellectual growth and spiritual support [at Gordon].”
So, this case is not about Gordon discriminating. This case is about Gordon’s right to be excellent in ways that other Massachusetts colleges and universities are not. The issue is whether Massachusetts courts will preserve the liberty of Gordon’s faculty, staff, and students to maintain an educational community that is unique in its moral commitments. On this point Gordon College can claim an unlikely ally. If the judges of Massachusetts read the writings of Supreme Court Justice Ruth Bader Ginsburg, then they will learn that Gordon College has the right to be differently excellent.
The Constitutional Right to Exclude
In its 2010 decision in the case Christian Legal Society v. Martinez, the Supreme Court of the United States declared and upheld the right of a state university to discriminate against unwanted student groups by excluding them from campus life. The unwanted student groups in Martinez were (who else?) religious groups that require members to live according to moral truths.
As Justice Ginsburg explained for the Court, the right to exclude does not emanate from the written Constitution but from the university’s status as property owner. Property is an ancient source of constitutional rights, much older than our written constitutions, and more fundamental to American constitutionalism. It has been part of our fundamental law since the first English colonists brought the common law to our shores. Far from abrogating the fundamental rights of property, the drafters of our state and national constitutions declared and codified them.
The rights of universities to exclude outsiders from their campuses are constitutional in two senses. First, the rights themselves are part of the fundamental law of our states and our nation. As the Court has repeatedly said, a state that owns property, like any other property owner, has the right “to preserve the property under its control for the use to which it is lawfully dedicated.”
Unlike Gordon College, a state university also bears the constitutional duties of a state actor, including the duty to hold limited public forums, such as university campuses, open on terms that are reasonable and viewpoint neutral. (By sleight of hand, a majority of the Martinez Court found that the state university had satisfied its constitutional duties.) But if it satisfies those duties, the university may exclude for any good reason.
Second, the exercise of a university’s property rights is a means by which a university constitutes itself, making itself this sort of university and not that one. The rights of property ownership enable each college and university to make its own unique identity and to pursue its own unique excellences. A university’s right to exclude religious student groups is the right to be different from those groups.
Vanderbilt’s Right to Discriminate
Since the Court’s ruling in Martinez, several colleges and universities have exercised this constitutional right to exclude religious groups. Most famously, Vanderbilt University has chosen to exercise its right to exclude in order to pursue a pure policy of non-discrimination. Religious student groups threaten the purity of that policy, and so must be excluded as long as they have membership policies codifying their religious beliefs. Vanderbilt administrators “really believe in non-discrimination.” They believe in non-discrimination so strongly that they publicly compare Christian student groups to segregationists and insist that Roman Catholic “faith beliefs” should not guide all of a Catholic’s daily decisions.
Vanderbilt’s right to pursue non-discrimination by discriminating is neither morally nor legally wrong. The right to discriminate is not morally problematic, because discrimination is neither bad nor wrong in itself. Discrimination is entailed in the exercise of judgment. Because judgment can be good or bad, right or wrong, discrimination can also have positive or negative moral value. Indeed, much discrimination is good and right. Only wrongful discrimination is wrong. Unjust discrimination is unjust.
Vanderbilt’s right to discriminate is also permissible as a matter of law. Vanderbilt has the right to discriminate because it has the right to exclude, an incident of its private property ownership. And unlike the state university whose policy was challenged in Martinez, Vanderbilt does not have constitutional duties as a state actor.
Vanderbilt is therefore legally free to constitute itself as a university that is particularly non-religious. The question is whether Gordon College will be left free to constitute itself as a college that is particularly religious. In other words, will we have equal liberty, or only liberty for those who despise Christianity?
Liberty for Thee and for Me?
The equal liberty of private property ownership makes pluralism possible. Target stores exercise their property rights to advance transgender ideology, while Chick-fil-A uses its private property to promote family values. Each of these corporations is free, like any business owner, to serve different values. Each can exercise its property rights to constitute its business according to its own values, which others may not share.
Private property also makes educational pluralism possible. And this makes the United States the envy of the world. Plural institutions engaged in diverse pursuits of the various forms of human inquiry and knowledge harness the power of specialization to enable educational excellence. No one college or university must be all things to everyone. Some can focus on teaching, others on research, some on technical vocations, others on the life of the mind.
Would you like to study engineering? You may attend some of the finest science and technology institutes in the world here in the United States (if you can satisfy the admission requirements). Those universities choose to value science and technology over other educational pursuits. Would you like to study the great books and the liberal arts? There are colleges and universities for that as well. Different universities excel in different ways because each is free to exercise its dominion of property ownership in ways that other universities do not value, or do not value as highly.
Massachusetts Institute of Technology is an excellent place to study science and technology, while The Juilliard School excels in the arts. Neither institution needs to imitate the other. Each is free to be itself: differently excellent.
Religious Mission: A Different Excellence
Gordon College is differently excellent as well. (I know; I graduated from Gordon.) The mission of Gordon College is quite different from the anti-Christian commitments of Vanderbilt University. As all Gordon College alumni of my generation remember by heart, “Gordon College strives to graduate men and women distinguished by intellectual maturity and Christian character, committed to a lifestyle of servanthood and prepared for leadership roles in their homes, workplaces, churches and communities.” The statement has been amended slightly over the years, but remains the same in substance.
Gordon College has pursued its mission with excellence since 1889. Gordon is also a private property owner, enjoying the ancient, constitutional liberty to coordinate campus life according to the College’s own excellences, even if others do not value them.
Tellingly, Professor Barthold alleges in her complaint that her “role as a professor does not differ from the typical role of a professor at a non-Christian college,” and that there “is a clear distinction at Gordon between faculty members, such as Professor Barthold, and those who are charged with ministering to the students.” These allegations are strategic, designed to get past the obvious defense of the ministerial exception to discrimination laws. But they are also factual allegations for which her lawyers are responsible under the rules of professional conduct. So, they must be grounded in a truth about her view of her role as a member of the Gordon faculty.
And here is the root of the problem: Professor Barthold seems never to have understood what Gordon College is, and why a Christian who loves philosophy would choose to teach there. The whole point of the voluntary conduct policy to which she, the Globe, and other anti-Gordon partisans object is that Gordon College is not the same as other colleges. Gordon’s faculty do differ from their counterparts at non-Christian institutions, and everyone at Gordon is involved in Christian ministry.
Gordon College faculty and students hold themselves to a higher moral standard because they view themselves as gripped by a gratitude toward, and obedience to, a benevolent Creator. In this coarse, narcissistic, and vulgar age, we should celebrate those who are obedient to something higher than themselves. Instead, the ACLU, The Boston Globe, Professor Barthold, and other elites want to force Gordon College to be just like everyone else.
Gordon’s excellence is different. And what if Gordon’s excellence is the excellence our culture needs?
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason (Cambridge University Press).